in response to application for rehearing.
McOLÉLLAN, -C. J.Further investigation and consideration ha.s but served to confirm us in tire opinion that the doctrine so clearly and ably stated and declared in Donovan v. Finn, by Chancellor Sanford, and which Ave adoptedl and followed in the original decision 'of this case, is eminently sound. All the argument that has been submitted against the integrity of that doctrine -pro. ceeds upon tAvo utterly gratuitous assumptions :' First, that at law, in the absence of statute, the judgment creditor has a light to have his debtor’s choses in action applied, to the satisfaction of his judgment, and that, therefore, since he cannot have his execution levied upon them, lie may have this legal right effectuated in equity; and second, that the fact that choses in action are not leviable converts -them into equitable property held by the judgment-debtor, that is to say, thati notwithstanding the title of the owner of a chose in action is purely legal and his rights in respect of it are enforceable only in a court of law, yet it is an equitable estate or property in Mm, amdl for that reason chancery has jurisdiction over it. And it is because Chancellor Sanford declined to adopt these assumptions, as entirely unfounded as any assumptions can he, and1 -to be led off by these palpable sophistries that it is sought to- present *516him, and. those “misguided” judges who recognize the soundness of his views and conclusions, as tyros in equity jurisprudence and ignorant of its elementary principles. So far’ as Chancellor Sanford is concerned, his statements of legal facts and his clear and inevitable deductions from them may well be left to stand alone and triumphant against all such assaults. As to* other “misguided” judges it would seem to be fair to. let them speak for themselves. : Among these are the Judges of the Queen’s Bench Div. of the High Court of Justice of England, who, speaking by Lindley, L. J., so recently as 1893, declare: “We have simply to deal Avith a case in Avhicli an ordinary judgment creditor sought the aid of a court of equity to enforce his judgment against property not capable of being reached’ by any common law process. The only cases of this Idncl in which courts of equity ever interfered [prior to the Judicature Acts] were cases in which the judgment debtor had an equitable interest in property lohich could have been reached at law, if he had had the legal interest in it, instead of the equitable interest only. This, will be found explained” by Jessel and Cliitty and the Court of Appeals (citing the cases). “It is an old mistake [and perennial it seems] to suppose that, because there is no effectual remedy a.t la.AV, there must be one in equity. But the mistake though old and often pointed out is sometimes inadArertently made even noAV. Courts of equity proceeded upon well known principles capable of great! expansion; but the principles themselves must not be lost sight of. The principle on which alone the order in this case could be supported before the Judicature Acts is Avell explained by Cotton,, L. J., in Anglo-Italian Bank v. Davies, 9 Ch. D. 275; it is that courts of equity gave relief ¡uhere legal rights existed, and there were legal difficulties which prevented the enforcement of that right at law. But. the existence of a legal right is essential to the. exercise of this jurisdiction. The judgment creditor here has a legal right to be paid his debt, but not out of the future earnings of his. debtor; and1 the court of chancery had no jurisdiction to prevent him from earning his living or from receiving his earnings, unless he had himself assigned or charged *517them. The court could not restrain him from receiving them until his creditor could attach them under the process of garnishment; nor did the court ever presumí? to enlarge the judgment creditor’s rights; nor, under colour of assisting him to enforce those rights, did the court of chancery reach by its process a kind of property which was not liable to execution. Before debt's and money were made liable to execution by statute, they could not be reached by an ordinary judgment creditor in equity any more than at law.” — Holmes v. Millage, 1 Q. B. 551, s. c. 10 Ruling Cases, 604, 608. To the same effect is the language of Jbssel, M. B.: “Priori to the Judicature Act, the courts of equity before granting equitable execution, required to he satisfied of two things, first, that the plaintiff in the action had tried all he could to get satisfaction at law; and then that the debtor mas possessed of that particular equitable interest which could not be attached cut law.” — Salt v. Cooper, 16 Ch. D. 544; and to like effect are the cases of Wills v. Luff, 38 Ch. D. 197, and In re Shepard, 43 Ch. D. 131. And this has for time out of mind been the law of England. Lord Tiiurlow, in Dundas v. Dutens, 1 Vesey, Jr., 196-7, the contention being that the chancery court should give execution against shares of corporation stock, ¡said: “Is there any case where a man having stock in his own name has been sued for the purpose of having it applied to satisfy creditors? Those things, such as stock, 'debts, being cbo-ses. in action, are not liable. TLoy could not be taken upon1 a levari facias. * * I have never lieaibl of such a thing.” Chancellor ThueIiOW may have been a “misleader of youth;” but if so itl is a strange thing indeed that none of the learned judges of England from his day to this has1 discovered the fact, but to the contrary, they all have uniformly followed, reaffirmed and redeclared the doctrine of Dundas v. Dutens, believing in their simple souls that it was the law of the land. Nor was the proposition stated by Lord Thurlow a dictum in that case according either to the apprehension of all subsequent English judges, or to the fact. It is singular to say the least that neither the fact of what Lord Thurlow said being a dictum, nr r *518the fact of his obtusehess and ignorance should have been discovered until now, and1 has not even yet been realized by any English judge, or American for that matter. Of his declaration of the law in the case referred to, Lord Chancellor Manners, in McCarthy v. Goold, 1 B. & B. 178-9, has this to say: “The claim upon dividends of bank stock has been very properly abandoned. I listened very attentively to Lord Thurlow in the case of Dundas v. Dutens, which was heard upon decree, and not upon motion, and he was clearly of opinion that dioses m action, of which description is stock, could not be reached by the process of this court.” The sarnie judge in Grogan v. Cooke, 2 B. & B. 115, said further: “In the case of Dundas v. Dutens, the question was whether stock that had been, settled could be brought within tire reach of creditors; I have a note of'that case which, on this point, is moire full than the printed'report of it, ■which I will briefly state. Lord Thurlow says: ‘Is there any case where stock 'standing in a trustee’s name can be made available to pay debts, or that debts (and stock is a diose in action) shall be transferred.to creditors for that purpose? You cannot have an execution at law against such effects.’ So in this case, how could the creditors have rnadle their policies of insurance available, either at law or in equity during Cooke’s life? for independent of the objection that a chose in action is neither subject to an execution, or to be attached in equity by creditors in the lifetime of the debtor, • here Cooke himself could recover nothing upon those policies.” Lord Eldon, a chancellor of ¡some repute in his time, referred, upon occasion to Lord Thurlow Avith respect and deference, and held Avith him that dioses inaction Avere not leviable, and could not be subjected in equity to the satisfaction of a judgment at law, (Nantes v. Corrock, 9 Ves. Jr. 182, 188; Rider v. Kidder, 10 Ves. Jr. 360, 368), remarking in the latter case: “It is clear, stock cannot be attached in the life of a party. Such was the language of Lord Thurlow in Dundas v. Dutens; and also in the case of Sir Alexander Leith, where a bill was filed to try whether this court Avould give execution in aid of the infirmity of the law; and it was held that there was no jurisdiction.”
*519So it stands the law in England to-dlay, apart from recent statutes, and has always been the law there, that a judgment creditor had no right to subject the debtor’s diosas in action to the satisfaction of his judgment, .and that there being no such primal legal right, the court of chancery has not, and has never had, any power or jurisdiction to subject such.property to the judgment a,t law. In addition, to the American courts and judges who hold the same doctrine referred to in the original opinion, the judges of the courts of last resort in the, States of Maryland, New Jersey, Tennessee, and Kentucky, are, according to counsel for appellees youngsters who have been misled by Chancellor Sanford and Lord ThurIjOw along with all the great judges of England.
The Maryland Court, of Appeals, on December 3d, 1896, in an elaborate opinion reviewing all the authorities laid down the doctrine declared by the English courts and by Chancellor Sanford, concluding the discussion with this quotation from., Donovan v. Finn “When a creditor comes into this court for relief, he must- come, not merely to obtain a decree or satisfaction of a judgment, but he must present facts which form a case for equity jurisdiction.” In the course of the opinion,, the court says: “In the early cases in England the jurisdiction here contended for, to' subject chose® in action, to the claim of creditors by a creditor’s bill, was sustained, but generally upon the ground of fraud, trust, or for some, other reaison which it was conceded Avould entitlle the creditor to invoke its aid. Thus Taylor v. Jones, 2 Atk. 600, lays down the doctrine that where a debtor has in. fraud of his creditors assigned to trustees certain dioses in action in trust for himself for life, and then over to his Avife and children, a, Court of Equity will favorably hear the application of such creditors, and decree such trust estate to be sold for the payment of their debt's. And this was held) to be so, notwithstanding such dioses in action were not subject to levy and sale upon execution at law. — Rex v. Marisal, 3 Atk. 192; Edgell v. Haywood, 3 Atk. 352; Horn v. Horn, Ambl. 79; Partridge v. Gopp, Ambl. 578; Smither v. Lewis, 1 Vern. 398. But, even in cases like that of Taylor v. *520Jones, supra, and the others just cited, which would perhaps be now generally conceded to be within the limits of equity jurisdiction because of the allegation and proof of fraud, it; was subsequently held in England that creditors could get no relief in equity because they had no legal right which equity could enforce. — Dundas v. Dutens, 1 Ves. Jr. 196; Grogan v. Grogan, 2 Ball & Beatty, 210. In the case last cited Lord Manners quoted Lord Thurlow as having said: 'The opinion in Horn v. Horn is so anomalous and unfounded that forty such opinions would not satisfy me. It would he preposterous and absurd to set aside an agreement, which if set aside leaves the stock in the name of the person where you could not touch it.’ And in Bayard v. Hoffman, 4 Johnson Ch. 450, Chancellor Kent, after a most careful and elaborate examination of the English authorities, came to the conclusion that while Lord' Hardwick® had maintained the jurisdiction of equity thus to proceed aigainstl dioses in action, it was afterwards denied and overthrown by both Lord Thurlow and Lord Eldon, although his own opinion as expressed in Bayard v. Hofmann, supra, was that 'the better1 reason is with the earlier authorities.’ But, notwithstanding this expression! of opinion in the case just cited, the more recent cases upon this point in New York and some other States have vigorously announced and maintained! the doctrine that aside from statute, and in the absence of fraud or some (dement of trust, chancery has do jurisdiction to subject chosesAn action to the payment of creditors, because there happens to be no remedy at law, and it would seem that Chancellor himself liad adopted this view, a.s will appear by reference to- his commentaries, vol. 4, page 61, where he refens to the New York statute as authority for the statement that in that State a chose m action may be reached by process in chancery for the benefit of creditors.”
Im the Maryland case it was suggested and insisted, as it is in this, that the creditor’s remedy by attachment of the person of the debtor having been abolished, the jurisdiction of equity to (reach dioses in action at once came into existence as a necessary complement to im*521perfect legal remedies. .This position the court repudiated iu the following terms: “Nor do we assent to the view that the mere abolition of the extraordinary remedies of outlawry1 and attachment of the person would confer jurisdiction on equity. Such a conclusion would he in conflict with reason, as, well as with modern authority. It would not seem to. follow that if the law had always and consistently refused to give an execution against things iu action, and had allowed only the extraordinary remedies just mentioned, that upon the destruction of the latter, the former would not only thereupon spring into existence, but become remedies appropriate for a Court of Equity. The contrary conclusion would, we think, be more reasonable, namely, that the Legislature having abolished execution against the person which was used for the purpose of getting satisfaction out of the debtor’s effects which could not be reached by other executions, and having failed to provide any new remedy to take its place it was not intenided there should! be any. And so it has been held in Donovan v. Finn, 1 Hopkins Ch. Rep. 59 (N. Y.); Buford v. Buford, 1 Bibb, 305; Greene v. Keene, 34 R. I. 387, 397. ‘Equity follows the. law,’ and as we have seen, a. rule either of statute 'or commion law is as potent in a Court, of Equity as in a. Court of Law. 1 Story Eq. Jur., § 64. Whatever may, at one timé, have been, the vague and general rule as to the limits and extent of equity jurisdiction, it is mow Avell settled that ‘no Court, of Chancery at.this day Avould attempt to supply the defects of la,Av by deciding contrary to its settled rules in any manner, tlo any extent, or under any circumstances, beyond the already settled principles of ■equitv jurisprudence.’ 1 Pomeroy Eq. Jurisp'., section 47.” "
The AAdiole of this able and learneid opinion might be set out, here with advantage to the bench and bar of the State; but we content ourselves with the folloAving additional excerpt: “It Avould seem to be reasonably clear from the authorities already cited and the discussion of them that, in the absence of a statute and in the absence of fraud or some other ground of equity juris*522diction, a Court of Equity has no power to subject the defendant’s unassigned -right of dower to the payment of her debts. But this conclusion will, we think, be placed! beyond doubt by a brief consideration of some of the adjudications of the highest courts of other States. In the case of Maxon v. Gray, 14 R. I. 641, which was decided in 1885, the very question now before us Avais passed upon. That -case, like this, Avas a bill in equity by judgment creditors for a decree for a. sale -of an unassigned right of doAver, anil in an able and elaborate' opinion the court came to the conclusion, after reviewing many of the previous cases, that equity had no1 jurisdiction. To the same effect Greene v. Keene, Ib. 388. In Creswell v. Smith, 2 Tenn. Ch. 416, it Avas held that-chancery has no power to reach stocks or things in action, even in the hands of third persons unaffected Avithfraud or trust without the aid of a-statute. — Keightly v. Walls, 27 Ind. 384; Williams v. Reynolds, 7 Ind. 622. In the case last cited it is said equity will not subject dioses in action to the payment of a judgment creditor, because equity only aids the law, and will, therefore, not” interfere, except as to such property as may be sold' on execution at law. In the case of Buford v. Buford, supra, the same view was enforced in the absence of a statute, and in concluding its opinion the court said, ‘The bare circumstance of a debt cannot be made the foundation of a bill.’ The'views upon the question of jurisdiction- express'd! in all these cases are in accord with the -rule as laid doAvn by Mr. Adams. ‘Equity,’ he says, ‘does not create new rights which the common law denies, but it gives effective redress for the infringement of existing rights, where by reason of the special circumstances of the case redress at law is inadequate.’ — Adams- Equity, p. 6;' Phelps Juridieial' Equity, sec. 158.”
This case is published in 57 Ann St. Rep. 407, and in a note Mr. Freeman again cites Donovan v. Finn, and several other cases, and says: “There is probably a preponderance of authority in favor of the view that equity has no power in ordinary cases to compel the appropriation of choses in action to the payment, of *523their owner’s debts.” Harper et al. v. Clayton, 84 Md. 346, 355.
The Supreme 'Court' of Tennessee is equally pronounced in support of the 'doctrine of the original opinion in this case. The following is the opinion of that court in the first case which came before it involving this question: “This is a bill filed by the complainant to subject stock in the Nashville Bridge Company to the payanienrt of his debt due from-the defendant. It is not pretended that there is any fraud or-trust in this case to furnish a ground of equity jurisdiction; and the simple question is, whether this court has power to cause stocks, credits and rights of action held by a debtor, without fraud, to be sold or converted into money, or transferred to the creditor in payment of his debt; we think it has not: and without entering into any reasoning on the subject, or review of authorities, we refer as conclusively settling the point to the case of Donovan v. Finn, 1 Hop. Rep. 59. Our act of assembly of 1833, ch. 11, makes ample provision upon this subject; but this bill being filed long before the passage; of that act, cannot be governed by it. Affirm the decree.” — Erwin v. Olham, 6 Yerger, 185.
In the case of Creswell v. Smith, 8 Lea, 688, which was decided nearly fifty years later, the decision in Erwin v. Oldham, was reaffirmed by the Supreme Court of Tennessee; and it ivas further held “that the mere abolishment of imprisonment for debt would not, without more, vest the chancery court with jurisdiction it did not previously possess, however much the creditor might need! additional aid.” This case was heard in the first instance and decided by Chancellor Cooper, a judge of very high repute with most lawyers and jurists, and in a learned opinion reviewing all the authorities and reaching the conclusion that equity was without jurisdiction in the premises, is found a reference to Lord Hardwickf/s position on the question which is peculiarly opposite here in view of the argument of counsel. After referring to the courts and judges ranging themselves on either side of the ■question), he continues: “In this war of giants,'(non mi taoitas componere lites.’ If, how*524ever, to« the great names, of Kent and Walworth could be added thei greater name of Lord I-Iardwicke, it would be difficult to° convince a lawyer of the present day that the weight of reason was not with them, whatever" might be the weight of authority. Unfortunately for that side of the question, we have a positive decision of the master mind of English equity, which seems to have been overlooked by Chancellor Kent, and is -directly in accord with Donovan v. Finn. In both cases a judgment creditor after exhausting his legal remedy, sought to reach a legacy due to the debtor in the hands of the executor of the decedent, and in both the decision, so far as it turned' upon the inherent power of the court of chancery, was the sarnie.” The chancellor then reviews the rulings of Lord Hardwicke in Edgell v. Haywood, 3 Atk. 352, and continues: “The language of this decision against the power of the chancery court to reach stock, debts and dioses in action', not leviable by execution, is quite as emphatic as that of Lord Thurlow in Dundas v. Dutens. It was only by virtule of the- statute that the court could act. Donovan v. Finn was precisely the same case without the statute. I conclude, therefore, that this eminent judge wa:s of the same opinion as his successors. — that such property could not be reached directly (in equity, but only through somie other ground of jurisdiction, such as fraud or trust1.”- — Creswell v. Smith, 2 Tenn. Ch. 416, 422-3.
In the original opinion we cited some Kentucky cases supporting the conclusion reached. We will now advert to one or two others decided by the court of last resort of that State. Buford v. Buford, 1 Bibb, 305, is one of them. We copy from the opinion in that case: “'The point being settled, that at Ian the obligation which James Buford held on Calloway, could not have been taken: in execution, n.or the land in the said bond described, it remains to enquire if a court of equity can go beyond the law, and! create a new right. Equity cannot construe a statute otherwise than a court of law can. Both courts are bound by the same rules of construction, insomuch it is a maxim that ‘equitas sequitur legem.’ Equity will remove impediments which are in *525the way to, legal rights; aanl will give redress where according to tifie forms of procedure at law, the complainant might have a right without a remedy, or where that remedy would he incomplete. Equity will enforce a recognized right, in a manner unattainable at law, but it cannot create a right unknown to the law. What right! then had William Buford, upon which he could bottom his complaint in chancery? At law he could have no lien upon his debtor’s property, by virtue of his judgment, until his writ of execution was delivered to the proper1 officer; but even after delivery he could! have gained no lien thereby on the land or the bond which is the subject of the complaint. The application therefore is not to enforce a right recognized by law, but to create one and give a lien unknown to' the law. Equity cannot sustain the prayer of the creditor upon the suggestion that his debtor has but an individual piece of property, and that his debt must remain unpaid unless the law shall be transcended and that property made liable. If the chancellor is not circumscribed by the rules of law which enter into and constitute the right, what is to limit his discretion? If he can seize the bare circumstance of a debt as the foundation of the bill, andl create a privity or a lien, where the law has given none, then indeed it might be said that justice Avas to be measured, by the chancellor’s foot, his power by his appetite, and his range illimitable. A bond for land give® no vested right to the land. It is but a right to ask for the subject or damages by Avay of compensation for not complying with that right. It is but a chose in action, which execution cannot reach, and Avhich equity cannot reach in behalf of a creditor, without a, privity created by the parties or by the Ian. -The insolvency of the debtor can furnish no ground for the interposition of the chancellor, Avhen in so doing he does not! follow, but outgoes tliei law. As Avell might the creditor ask that his-debtor Avbo was destitute of property, should be compelled to labor and suffer the creditor to receive the proceeds. And yet it is believed the chancellor could exercise no such power, although the law had given, the creditor an execution *526against the body of the debtor.” And in the late case of Curd v. Letcher, 3 J. J. Mar. the same .court reaffirms the doctrine of Buford v. Buford, and- of the other cases cited in our original opinion.
The New Jersey court, enjoying an especially high reputation, in the field of equity jurisprudence, is-thoroughly committed to' the same doctrine.. The first rase was that of Disborough v. Outcalt, 1 Saxton’s Ch. 298. There was a full.discussion of the question on principle and authority, and an unqualified acceptance and adoption of the doctrine of Donovan v. Finn. In Whitney v. Robbins, 17 N. J. Eq., 360, it is decided that-“the jurisdiction of the c.ou'rt of .chancery to: collect the choses in action of a judgment debtor, and apply them.to,the payment] of his debts, has never been assumed in this State until conferred by the acts of” 1845 and 1864, and this holding was reaffirmed in, Vanderveer v. Stryker, 4 Hals. Ch. 175. Thp case-of Hardenburgh v. Blair, 30 N. J. Eq. 645, was decided by the Court of .Errors and Appeals in 1879: The-court having held .that the relief sought was not grantable under certain statutes of that State, proceeds thus: “But it is-contended, on behalf of the judgment creditor, that,-independently of the acts of 1845 and! 1864, chancery had a jurisdiction which would enable it .to reach the moneys in question and apply them in payment of the judgment debt of the cestui que trust. An examination of the decisions of the English courts avüI show it to be there settled that an original jurisdiction of this kind did not pertain to its courts of equity. The poAA^ers of the court Avere simply in aid of the judgment creditor, where a trust had been interposed which obstructed the operation of the process of a court of law, and extended only to such property as, save for the interposition of the legal obstacle, might have been reached by such process. Speaking on this subject, Lord Cottenham says : ‘What gives a judgment creditor a right against the estate is only -the act, of parliament, for, independently of that, he has no such right. The act of parliament gives him,, if-he .pleases, .the option by the. Avrit of elegit. * * - * . The effect- of the proceeding-under the writ, is to give .the *527creditor a legal title, which, if no impediment! prevent him, he may enforce at law by ejectment. If there be a legal impediment, lie then comes into the. court, not to obtain a greater benefit- than the law (thaiti is, the act of parliament) has given him, but to have the same benefit which he would have had at law if no legal impediment had intervened.’ Neate v. Duke of Marlborough, 3 Myl. & Cr. 416. Mr. Lewin, after an examination of the cases, uses this language: ‘As equity only follows, and does notl enlarge the law, the-judgment. creditor has no title to- relief where the chattel,^ of which the trust has been created, is not, in itself, amenable to any legal process,’ Lewin on Crusts, 648. In Taylor v. Jones, 2 Atk. 600, which Chancellor Kent said contained; the great and leading doctrine in support of the creditor, the debtor had, in fraud of creditors, purchased stock with his own money, and vested it in trustees for the benefit of himself for life, and of his wife for her-life, and afterwards for tire benefit of his children. On. a bill filed by his creditor's to have his debts paid out of the stock, it, was decreed that the trust estate be sold and applied in payment of the creditors, although the stock was not, at that time, subject to levy and sale under execution at law. The caise was one infected with fraud, and the decision of the master of rolls Avas put on that ground. Now, although fraud is one of the heads of equity jurisdiction, yet Taylor v. Jones, and several other cases of the same kind, have-been denied as contrary to correct principle, by a weight of judicial opinion that entirely destroys their value as precedents. — LeAvin on Trusts^ 648. The subject has since been regulated by acts of parliament, which expressly malee a judgment 'debtor’s equitable interest in lauds, and also stock, funds, and annuities held by him in his o-Avn name, or in the name of another in trust for him, available for the payment of his debts. * * * * * Independently of these statutes, and the statutes relating to insolvent debtors and bankrupts, it is well settled in England, at the present time, that the jurisdiction of chancery ini aid of a judlgment creditor extends no further than to' property of such a nature and de*528scription as might have been seized by the process at law if some legal obstacle bad not. been interposed.”
Necurring now to the New York decisions: The case of Hadden v. Spader, 20 Johns Ch. 554, is chiefly relied upon as settling the doctrine in that State that a. judgmen- creditor ’even ini the absence of statute may come into chancery to have satisfaction out of dioses in action belonging to his debtor. There is an opinion in that ease by Woodworth, J., to. this effect. It was concurred in by Spencer, C. J., and dissented from by Platt, J. The statement of facts in the report demonstrates. that the ease was one of fraud and trust and therefore, well within a recognized head of equity jurisdiction wholly apart from the question we are now upon. All which is made entirely clear in the opinion delivered by Justice Platt, who concurred in the affirmance of the decree upon the ground of fraudl and trust, concluding in these words: “But I am not prepared to extend this doctrine to any other cases than those wherein the trustee received goods liable m themselves to execution. under circumstances, which imply fraud, in fact or in law, as against creditors. In an abstract view, it may appear proper to extend the remedy in favor of creditors, to every chose in action of the debtor. But in my judgment such power lias not yet been conferred on our courts of justice; and it will be the appropriate office of a bankrupt law, or some other legislative provision, to afford such a remedy. I feel that we arej treading on new ground, and I am unwilling to commit myself beyond the case now before ns.” What we have thus set forth as being the case before the court, leads inevitably to the conclusion that all that ivas declared by Wood-worth, J., as to the right of a creditor to subject the dioses in action of his debtor was beside the case presented, wholly unnecessary to its decision, and therefore was the merest dicta of that judge. It was so. declared in the subsequent case of Donovan v. Finn, as we have seen; it ivas so considered and esteemed by the lawmakers of New York, else there would have been no occasion for the statute of 1830, expressly passed to “settle” the law in accordance -with Woodworth's opinion, and *529so expressly lielcl by the Court .for the Correction of Errors in the case of Durant v. Albany County, 26 Wend, 66, decided in 1841. And, beyond this, the opinion is inconsistent with itself, in that it confesses in one part that the remedy proposed to be applied must be; predicated upon a right existing at Icm, but which in the particular case the remedy at law is inadequate to effectuate, and from this sound basis stated in tbe opinion itself, it proceeds to the conclusion that equity may reach andl apply dioses in action when confessedly there was no right at law in any case to so reach and apply theim. In the cast last cited — Durant v. Albany County — the decision was that-the chancery court had no' such jurisdiction' as was attempted to ho declared by Justice Woodworth in Hadden v. Spader, andl the presiding judge of the court in delivering the ruling opinion in the case had the following among other tilings to say of Hadden v. Spader: “It is true in the ca.se of Hadden and Spader, the learned member of the court of errors, who delivered the leading opinion, did advance a doctrine which carried the jurisdiction of chancery beyond its former recognized limits, and extended it to the discovery and application mí ehoses in action and equitable interests, which could not before he levied upon by execution at law.. In these views another learned member of the court expressly concurre:]; and what is very remarkable, the, opinion which had been delivered, is expressly referred to in the preamble to the final decree altered in the case. But, this ease, I apprehend, notwithstanding the extraordinary preamble of the decree, cannot he eonmdered as deciding anything beyond the true point involved in the case. That was clearly within the former acknowledged! jurisdiction of the court of chancery. It was in no respect necessary, therefore, to Us decision and the affirmance of the decree of the chancellor, to assert the. new and enlarged jurisdiction of that court, Avhich was claimed for it in the leading opinion delivered on the final decision of the case. While, therefore, that decision hais been considered as sound law, the reasoning of the leading opinion in it appears not to have been received with equal *530favor, or to> have been acquiesced in either by the courts or the bar.” Here follows quotations from the opinion of Chancellor' Sanford in Donovan v. Finn, showing the unsoundness of Woodworth's views in Hadden v. Spader, which we do not repeat here as they are set out in the original opinion; and the opinion in Durant’s case proceeds: “I have been the more liberal in my quotations from the opinion of Chancellor Sanford in the case of Donovan and, Finn, not only because that case appears to have been fully argued, and rvell and ably considered, but because they present the views of a chancellor, who was as faithful and enlightened in the exercise of the powers which lie believed himself to possess, as he Avas careful to, abstain from the assumption of those not within his proper jurisdiction; and who, while he was prompt to apply all the legitimate and 'benefieieut prerogatives of equity to the great purposes of justice, viewed with anxiety, and not without painful alarm, the tendency of hisi own court to an undue accumulation and! exercise of powers. New officers of the court of chancery have lived, whose governing principle appears to contrast more strikingly with that embraced in the old saying,' so fully exemplified -in the life and character of Cardinal Wolsey, the chancellor of Henry VIII. of England: ‘That, great men in judicial places will never want authority.’ Views of the case of Hadden and Spader, similar to those of Chancellor Sanford, seem to* have been entertained by Justice Marcy and others, in. the subsequent case of Pettit v. Candler, in this court in 1829. See 3 Wendell, 618. Justice Marcy there says: ‘The relief asked) for and granted in the case of Hadden v. Spader, lay within the uncontasted powers of the court; but the doctrine advanced by some of the judges when that case was reviewed in this court, went greatly beyond the principle necessarily involved in it, and is supposed by Chancellor Sanford not to have the sanction of the court.’ ‘Nothing can be certainly said to be established ais law by this court in a particular 'decision, but what is necessarily involved in the. case decided.’ Chief Julstice Savage concurred in the views presented by Justice Marcy, with the remark, that ‘his *531impressions- were that, underr" the existing law, a defendant is not bound to answer as to property which never was within the reach of an execution.’ Justice Sutherland concurred,reserving himself upon this latter point. I think, therefore, that it must be conceded that the law of the decision in the case of Hadden and Spader did not extend' the jurisdiction of chancery beyond its former acknowledged limits; and that, previous to the statute of 1830, that court, in the absence of fraud, trust, or other heiadl of equity, had no power to compel the discovery of money, stocks, clio-ses in action, or equitable interests of a debtor, not tangible by execution at law; and to- apply them, when discovered, to the payment of the debt of a creditor, even although such creditor had obtained a judgment at law, issued an execution thereon, and had it returned unsatisfied. If the court had such jurisdiction already, then the passage of the statute of 1830, expressly giving it that jurisdiction, was unnecessary and! is without effect. But I tlake the passage of that statute to- be evidence that, in the opinion of the revisers who proposed it, and the revising legislature who passed it, the court of chancery independent of the statute, had not the jurisdiction in question. Indeed, the revisers in presenting the draft, of the proposed statute, expressly sa,y, that ‘deeming it important to settle the law, and preserve the rule as laid down in Hadden and Spader, they have p-re-paredl the above sections ;’ thereby clearly implying that without them, the law was not so settled.”' It was insisted in Durant’s case, as it is insisted here, that the statute of New York above referred to was merely declaratory of, “and only reasserted jurisdiction which the court of chancery already possessed, but which had been drawn into question and doubt,” and there as here certain declarations of Chancellor Walworth were relied upon to support the position.' Of these deliverances the opinion in Durant’s case treats as follows :• “I am aware that in Tarbell v. Griggs, 5 Paige 207, the present Chancellor — Walworth —'said, ‘It has been repeatedly decided that this- section of the Revised Statutes is not introductory of a new principle, but is only in affirmance of what was considered *532by the court of dernier resort, the Legitimate jurisdiction, of the court of chancery previous to> the adoption of the Revised Statutes.’ The learned chancellor has not been pleased to refer us to the cases in which it has1 been so repeatedly decided. The statute went into effect in 1830; the chancellor spoke in 1882, and I ami not aware of any decision of any court during- that period, or even down to the- present time, giving to the statute in question the character andl effect ascribed to it by the chancellor. If there be any such decision I have been unable to find it. It is true that in. Child v. Brace, 4 Paige, 309, the chancellor again says,-‘It must, he recollected, however, that this statute is only declaratory of a principle which had before been adopted in this court.’ Again, the chancellor does not refer us, to the cases in which the principle of the statute had been, adopted in our court of chancery ; and I know of no-case in which that principle forms, a, part of the decree andl law of the case.” After referring to all the cases, at all hearing on the matter and demonstrating that none of then) supports Chancellor Walwobth's assertion, the opinion, with, reference to- him, proceeds: ‘‘.Down to 1827, it would appear that, in the opinion of the present Chancellor himself, notwithstanding the decision in the case of Hadden v. Spader, neither the doctrine of the leading opinion in that case, nor the principle of the statute of 1830 Avas the acknowledged Iíiav of the court of chancery of this State; for in the case of Weed and Martin v. Pierce, which in that year came before him, as VicedJlnmcellor of the fourth judicial circuit, be said, T think with the late Chancellor, that in an ordinary cast1, free from till fraud and justice1, this court ought not, on the. application of an execution creditor, to depriw; the debtor of the power of collecting his debts. There must undoubtedly be an unconscientious exercise of that poAv'er on the part of the debtor, or some fraud,’ collusion, injustice, or Avilful neglect on bis part to collect, and apply his debts and dioses to satisfy his creditors; or some other ground of equitable jurisdiction in relation' to such debts or dioses in action, to enable execution creditors, by aid of a court of equity, to reach and apply *533the same in satisfaction of their judgments and! executions. It must be admitted that the reasoning of Judge Woodworth-’ (in Hadden and Spader) ‘would extend the jurisdiction of courts of equity much beyond wha,t the late 'Chancellor supposed was .allowable.’ Such Avere the views of Vice-Chancellor Walworth in 1827. They seem to me to be entirely sound, and to present truly the law of the: court of chancery down to 1880.” This very able and exhaustive opinion in another part undertakes to summarize! the law of New York on the question und'e.r consideration, prior to the statute of 1830: “The ordinary cases in Avhicli a court of chancery in the exercise of its appropriate powers., and within its own proper and legitimate jurisdiction, might, previous to 1830, interfere in aid of a judgment creditor, may be compris-eld under the two general classes following: 1. To compel the discovery of property improperly concealed, or withdraAvn from the creditor; and which, when discovered, may be taken in execution at law; and 2. To remove impediments, either created by equity, or interposed by fraud, to the due course of proceedings at law. It is belieA’-ed that, previous to- the Revised Statutes of 1830, the cases in Avhich our own court of chancery interfered to relieve judgment creditors, Avere all-embraced1 in these two general classes, and were, of course, all cases of acknowledged equity jurisdiction. They all came, under some general head of equity. The case of Bayard v. Hoffman, 4 Johns. Ch. 450, was a case of fraud, trust, and a conveyance without consideration; that, of Brinckerhoff v. Brown, Id. 671, was a case of fraud; that of McDermot v. Strong, Id. 687. was a case of trust; that of Hadden v. Spader, 5 John. Ch. 280, and 20 John. 554, was a case of trust and fraud; and the ease of Pettit v. Candler, 3 Wend. 618, was also one of trust and fraud. These are the leading cases in our own courts previous to 1830; and it will be seen on examination that they all embrace: some general head of equity, and are thus within the legitimate jurisdiction of chancery. In neither of them was there an attempt on the part of the- court, without facts- or incident's of equitable jurisdiction, to discover and apply to *534the payment of the debt of a judgment creditor, stocks, credits, choses in action of equitable interests, not tangible by execution at law.”
We will not pursue this'discussion'and citation of authority further. Quite enough has been said and shown upon adjudged cases and texts incidentally quoted! to demonstrate that“Donovan v. Finn was” not “opposed to tire precedents extant from the most distinguished judges,” but was strictly declaratory of the law of England and of the State of New York in the then absence of statutes. Enough has appeared also to demonstrate that “Donovan v. Finn was” not “immediately des nounced, disregarded and overruled,” and that it has been “followed in the State of New York where it originated.” And apart from these statements, quite sufficient of reason and authority has been presented to'demonstrate the soundness of the proposition of Donovan v. Finn as a living principle today. On the other hand, the case of Hadden v. Spader, or rather tire view of Justice Woodworth there evpressed, is a conclusion drawn from a stated! premise which palpably and according to all Avell considered cases does not support it; Arms at most a dictum wholly unnecessary to the determination of the case, and has. been denounced, disregarded and overruled, not only in New York where it originated, but also by courts, whose learning and ability have not before now been drawn in question1, almost from one. end of this, country to the other.
But it is insisted that this court in its early reports— in cases arising before avc had any statutes bearing on the matter1 — ruled in line Avith the views of Justice Woodaa'ORTh expressed in Hadden v. Spader, and against the doctrine declared in Donovan v. Finn; and counsel, for the first time, on the application for rehearing, cite some Alabama cases. Among them is Brown et al. v. Bates, 10 Ala. 432. This Avas a case under the statute of 1844 (to be considered further on), but in the course of his opinion in the case Chief Justice Collier remarked: “It Avas held in this State long previous to 1844, that; a judgment creditor who had exhausted his legal remedies might go into equity for the purpose of *535subjecting the equitable estate of his debtor, or other interests that could not be malde available at law.” But the learned Chief Justice does not: cite any case in support of this dictum of his, and- none have been cited by counsel or found by us. The only cases prior to Brown v. Bates to which we have been referred are those of Vandegraaf v. Medlock, 3 Porter, 389; Morgan v. Crabb, Id. 470; Roper v. Cook, 7 Ala. 318; and Lyon v. Bolling, 9 Ala. 463. The last nameld case Avas simply a bill filed by a creditor by subrogation to subject to the payment of his debt land which had been purchased and paid for by the debtor, but the title to Avhich, in fraud of complainant and other creditors, had been taken in the name of the debtor’s son. There could have been nothing decided in such a caise bearing upon the matter of consideration, and nothing was attempted1 to be decided nor was anything said having any such bearing. The 7th Ala. case was a bill filed by the assignee of a purchase money note to enforce a vendor’s lien. After deciding that the bill had equity to enforce the lien, Collier, O. J., said that if complainant had not had a lien, he should have had to recover judgment and have execution returned 'nulla bona, before he could have come into equity to subject the equitable estate of his debtor, meaning by “equitable estate” property belonging to the debtor but standing in the name of another person, there having been no conveyance executed to the debtor in the case. In the the case of Vandegraaf v. Medlock, 3 Porter, 389, the case and the decision are embodied in this head-note: “Chancery has no power to decree to mortgagees, the proceeds, of a policy of'insurance, effected by the mortgagor, on the mortgaged property, AAdiere the same has been destoyed by fire — no covenant existing in the deed as to the insurance.” Clearly here was nothing bearing on our point, But Judge Hopkins said wholly outside of the case and the decision: “If he [the mortgagor] be insolvent, his other creditors have as just a claim to the proceeds of the policy as the mortgagee. But no creditor could make them liable by the aid'of a court of equity, to satisfy his demand, who had not before he filed his bill for the purpose, obtained *536a judgment at law, sued out execution, and pursued the latter to every available extent a,t law,” and he cites in support of this obvious dictum Brinckerhoff v. Brown, 4 Johns. Ch. 671, which does not support it in point of decision,. an);l which so far as its cliota may tend that way has been wholly repudiated. But leaving Brinckerhoff v. Brown out of the question., the casual and incidental remark of Judge I-Iopkins amounts to nothing, and even as dictum it! does not support the dictum of Judge Collier in Brown v. Bates, quoted above. It is only necessary to say of the case of Morgan v. Crabb, 3 Porter, 470, that the dictum of Judge Hopkins just referred to is there repeated by him, and is confessedly as alien to the case and the decision in the one case as in the other. It is most manifest that these dicta do not support Judge Collier's dictum in Brown v. Bates: “It was held in this State long previous to 1844,” etc., etc.; and that they did not by any means establish any doctrine in this State opposed to Donovan v. Finn, prior to the act of the year just named.
We may interject here that as the territorial legislature had, in 1818, passed a garnishment statute, it might well have been decided by this court prior to the act of 1844 that chancery would entertain a bill to reach the dioses in action, of ai judgment debtor1 which because of some legal impediment could not bei reached and subjected by process of garnishment; but this, as we shall see, would have been on the ground that the: statute referral to had given the judgment creditor the legal right to subject dioses in action, and the legal remedy ivas inadequate under the particular circumstances.
Therefore, Ave include Alabama, in repeating and reaffirming the doctrine of the original opinion that, apart from statutes, courts of equity have not and never had any poAver or jurisdiction to subject the ehoses in action of .a, debtor to the satisfaction of a judgment against him.
There is a- statute in Alabama which, it, is insisted, confers this power and jurisdiction in cases of the kind Ave have in hand. This Aims enacted in 1844; that, nart of it doav relied on by appellees was embodied in a *537changed) farm as section 2987 of the Code of 1852, was section' 3540 of the -Code of 1886 when this case arose, and is section 814 of the Code of 1896. We are of opinion that this statute has no hearing on the case in hand, for the reason that it authorizes bills for discovery only, and the subjection of property discovered in proceedings under bills for discovery and nothing else, and the bill in this case is in no sense a hill for discovery, or within the statute at! all. The statute in. its original form was .as fallows: “An Act authorizing the filing of Bills1* in Chancery in certain cases. Section 1. Be it enacted ” etc., “That whenever an execution against, the property of a defendant shall have been issued on a judgment at law and shall have been returned unsatisfied, aind there shall remain due on said judgment, the party suing out such execution ma.y file a bill in chancery against such defendant, and any other person or persons, to compel the discovery of any property, money, or thing in action, belonging to< the defendant, and if [of] any property, money, or thing- in action due to him or held in trust for him, and to prevent the transfer of any such property, money, or thing in action, or the payment or delivery thereof to the defendant, except when such trust has been created by, or the fund so held in trust, has proceeded from some other person than the defendant himself. Sec. 2. And be it further enacted, That the said court shall have power to compel such discovery, and to prevent such transfer, and to decree satisfaction of the sum remaining due on such judgment, out, of any property, money, or thing in action belonging to' the defendant, or held in trust for him, with the exception above noted, which shall be discovered by the proceedings in chancery, whether the same were originally liable to. execution at law or not. Sec. 3. And be it further enacted, That a bill of discovery may be filed, and the defendant shall he compelled to answer such hill, when the defendant is charged with having confessed, or suffered any judgment purporting to he for a sum or debt! due, AAdietu in fact nothing, or, .only a part of the SAim. stated in said judgment is due, with intent to defraud the just creditors of said defendant, or to place *538the property of the defendant out of the reach of his creditors or to hold the same on some secret trust or confidence, or for the benefit of such defendant.” Acts 1844, pp. 107-8. It is manifest that we need refer in this discussion only to the first and second sections of this act, the third, being entirely alien to the present case; is not involved. So much of sections 1 and 2 of this act as. was the laAv Avhen this bill .Avas filed was embodied in section 2987 of the Code of 1852 taken in connection with section 2 of that Code, anid so it has been embodied in each subsequent Code without amendment and constitutes section 814 of the Code of 1896, with certain provisions of section 2 of that Code read into it. As codified in 1852 the statute reads as rollows: “§ 2987. When, an execution for money from any court has been issued against a defendant, anid it is not satisfied, the plaintiff or the person for whose benefit such execution, is sued out, may file a bill in chancery against such defendant, to compel -the discovery of any property-belonging1 to him, or held in trust for him; and to prevent, the transfer, payment, or delivery thereof such defendant, except Avhen tire trust has been created by or proceeded from some other person than the defendant himself; and the court may.bring any other party before it, and decree such property, or the interest of the defendant therein, to the satisfaction of the sum due plaintiff.” The Avords, “or money, or thing in action”' employed several times following the word “property” in the original statute are not set down in this section, but they are supplied by the definition of the Avord' “property” as used in the Code contained in section 2' of this and all succeeding Codes, so that in this respect the codified statute is precisely the same as the original. Another difference between the original act and its codification consists of the omission from the latter of the prevision' of the formier for tire bill to be filed against “any other person or persons” as Avell as against the defendant in execution. Whatever else may be said of this omission, it is, certainly not supplied by any provision, in any of the Codes, unless the provisions in these words: “and the court may bring any other party before *539it,” etc. which, was not in the statute originally, but is new to the Code of 1852, be taken to supply in a sense the. omission last referred to.. Doubtless the new provisional does in a sense supply the old, or the occasion rather for the old; but it cannot be said that they are the same or.mean the same thing. To the contrary, the original statute proceeds upon the theory that persons having property of, or owing money to the defendant may ~be Imoicn to the complainant at the time he files a bill to discover them, and being known it undertook to authorize the bill to be filed, the suit initiated against them as well as against the defendant in the first instance. On, the other hand, the codifiers, taking the statute to authorize what only it purports to authorize, namely, the filing of a bill of discovery and the subjection of property discovered under it to complainant’s judgment at law, and recognizing, what the legislature had apparently overlooked, the sheer anomaly, and to say absurdity, of prosecuting a bill to discover property of the defendant which complainant already knows to be in the hands of or due the defendant, from a known person, and recognizing also the existence in; Alabama since before its. admission into the Union of a garnishment statute, which they themselves had incorporated! in previous sections of the Code of 1852, by which all the effects of the defendant in the hands of or OAving by third persons knoAvn to the judgment creditor could be reached and subjected at law, and hence that there Avas no possible occasion for a bill in equity in that behalf, they, the codifiers, in making this change, proceeded upon the only tine theory of a bill of discovery, that is to say, the theory that the complainants could not know before filing his bill and having it answered who held) defendant’s concealed property or might not know who oweld defendant money, and providled, instead of allowing the bill to be filed against other persons, that Avhen such other persons should be discovered by the ansAver to the bill, the court should then bring them before it and sequester the effects of defendant in their hands or OAving by them.’ The change thus wrought by the codifiers is a pregnant one. It is quiter true that-*540the original statute in terms authorized the filing of a hill of discovery, and expressly limited the remedy given to property “which shall be discovered by the proceedings in chancery;” yet so long as the provision authorizing the hill to he filed against, third persons remained, there was such inconsistency in the act as gave rise to plausible contention that a hill not of discovery could he maintained undier it; and to this may be ascribed whatever of dicta this court may have at any time indulged to that effect: The important change in question; has not been at all times sufficiently taken into' account. With it properly in view there is, and, since the Code of 1852, there has been no room whatever, nor the least justification for saying that under the statute any other than a. bill of discovery can he filed.
■ To the query, Why give this remedy against unknown or concealed property and not against known property of the defendant? the answer is short, complete and perfectly manifest. It is, as we have already indicated, that, in 1844 when this act was passed, and in 1852 when it was codified, the judgment creditor already had and for years had had a plain and adequate remedy at law by garnishment to reach and subject to his judgment all known property, money and dioses in action belonging to the defendant held in trust or otherwise by, or owing from third persons, under the Territorial act of 1818 which was embodied in the Code of 1852 as section 2471, and which has continued to he the law of this State. — 'Aiken’s Ala, Dig. 213. It is the converse question, so to speak, Why should the legislature have given a remedy by bill in chancery to subject known effects of the judgment debtor -when there was already a plain, adequate and complete remedy in that regard at law?’ which cannot he answered at all; and upon which, the only thing that can he said is that no'remedy by bill in equity to reach such known effects has ever been given or attempted to be given. And it was to1 re-' move any semblance of haziness even upon this point that the codifiers of 1852 miade the change in the act of 1844 to which we have adverted. John J. Ormond, the chief codifier of 1852, was on this bench along with *541Collier, C. J. and Goldthavaite, J., when Brown v. Bates, 10 Ala. 432, was decided. He was also on the bench with the same associates, when the case of Allen et al. v. Montgomery Railroad Co. et al., 11 Ala. 437, was decided; and in this latter ease it was held that a bill seeking to subject choses in action which could be reached by garnishment was Avithout equity, and it Avas this doctrine Avliich he and his co-commissioners sought to relieve from all questions by more clearly and distinctly confining the remedy given by the act of 1844 to property Avliich could not be reached by garnishment because it Avas concealed, and in respect of. which, therefore, a discovery Avas necessary.
But it, is insisted that the statute of 1844 Avas taken from and is substantially the same as the New York statute of 1830, that that statute has been construed by the courts of Ncav York to authorize the judgment creditor to file a bill in chancery to reach, and subject the dioses in action of the -debtor in any case AAdiether discovery is necessary or not, and that, of consequence, our statute's should receive; the same interpretation. The statute-! of New York is a. substantial prototype of the art of 1844, except that it contains no- provision for making others than the judgment debtor defendants to the bill it authorizes; and it differs from the codification of the? act of 1844 in that it does not provide for the court’s bringing in peu-son-s aaíio are discoArered by the answer te> owe' money to or have effects of the debtor defendant. It Ava.s, hoAvesver, expressly enacted AAith reference and se-ttled the huv according to the opinion of Woodworth in Hadden v. Spader, in AA'liich the bill made* another than and along Avith the debtor a, party defendant:, and this circumstance; preibably justifies the construction there- put on the statute in this regard. It is probably a circumstance, too, tending to give plausibility to the- notion that because the -statute of 1844 authorized others than the defendant in judgment to be made respondents to the- bill, such bill need not be strictly one for discovery, but it is a circumstance of no importance in the construction o-f the codification of the act of 1844, which strikes out the provision for making third persons, par*542ties, and provides for the bill being filed against the judgment debtor and the bringing in by order of the court third persons whom the answer discovers to be in possession of the 'respondent’s property or to owe him money. This pregnant change in the statute of 1844 in itself supplies good ground for not applying to it as codified the construction which in this regard was applied to the New York statute. But there are cogent grounds for repudiating the New York construction as the sound one as well for the act of 1844 as for its codification. As wre have said the statute of that State was enacted (expressly to establish as law the view of Justice Woodworth in Hadden v. Spader. That view wras in effect that whenever execution on a judgment at law should be returned nulla, bona, the judgment creditor had a right to come into equity to reach and subject to the satisfaction of his judgment chose® in action belonging to the judgment debtor1. The expressed purpose on the part of the lawmakers to settle this, declaration of Justice Woodworth as the law of the State, naturally, and, it may be conceded, properly overbore and emasculated expressions in the body of the act confining the remedy to' cases in which discovery wras necessary and to bills for discovery. There was no' expression on the part of tire legislature of Alabama in the passage of the act of 1844 of any purpose beyond that set forth in the body of the act itself; and looking to the act itself there can be 'no question, we think, that the thing authorized was tire filing of bills of discovery only, and not the filing of bills generally to reach choses in action of the judgment debtor. In other words, tire consideration which constrained the Newr York courts1 to disregard the terms of the act itself which went to confine it to bills of discovery, never had any existence in respect of the courts of Alabama; and leaving it out of view, the conclusion that our statute has reference solely to such bills cannot be reasonably escaped. But there is> yet another view which to our minds in itself strips the contention for the application of the New York construction to the Alabama statute of all semblance of merit: The deliveranee of Justice Woodworth is expressly rested on the *543theory that the choses in action of a debtor should be ■applied to the satisfaction of the judgment against him, that there ivas no way to so subject them at law and that ex necessitate equity must supply the remedy to that end. It was not pretended that equity would give such remedy if there was a remedy at law; but his position was that chancery would eke out the deficiencies of the law because it was absolutely necessary to the ends of justice that it should do- so. He merely proposed to apply .a remedy to meet a necessity, and the doctrine he enunciated went, nor ivas intended to go, no whit beyond the necessity. This doctrine of necessity was that the legislature of New York expressly proposed to settle as the law of the State. At that time' there was no remedy at law in that State to reach and subject any of the judgment debtor’s choses in action known or concealed. There Avas no- statute of garnishment nor other mode of levy at la,AV upon choses in action. To carry into effect- the remedy of Woodavorth, J., as he had formulated it, AAhich formulation the legislature expressly undertook to make the laAv of the State, it Avas necessary for the statute to be construed to give •a remedy in equity against all choses in action, because at law there was no remedy against any. If there hadl been a garnishment law in Noav York under which all known choses in action of the debtor could have been subjected at law, the proposition of Justice Woodavorth would not have involved an equity remedy to subject them, and the statute to settle his proposition as law ■couild not have been construed to extend the equity-remedy to them. The Avliole purpose of Woodworth, J., which Avas expressly declared to be the purpose of the legislature, being to give a remedy against chosies in action AAhich could not be reached, and because they could not be reached at law, the statute could never have been construed to give a remedy in equity against choses in •action which could be reached at law, more, especially when such a construction would have done palpable violence to the language of the body of the act dissociated from the otherwise expressed purpose of its enactment. Now in Alabama in the year 1844 the only choses in *544action of a judgment debtor Avhich could not be reached and applied to the satisfaction of the judgment by legal process, Avefe those Avhich were concealed from the judgment creditor; there was no lack of legal remedy to apply these once found, hut only a Ava.nt of power in the courts of laAV and in the creditor to find them; the doctrine of necessity applied to them only to the extent of supplying a remedy to discover them, to discover in Avhose hands they Avere or Avho OAAred money to the defendant in judgment. To this end the statute is express: it authorizes the filing, of a bill of discovery, and1 not any other sort of bill; it deals Avith property disco acred in the proceedings consequent upon the bill for discovery, and it deals Avith no other property; and by the same judges AAdiO1 decided Brown v. Bates, 10 Ala. 432, it Avas decided in Allen et al. v. Montgomery Railroad Co. et al. 11 Ala. 437, and this after the statute of 1844 and immediately after it had been treated and discussed by them, that the chancery court had no jurisdiction to subject a chose in action which was. leviable by process of garnishment in a court of law. Thej statute of Npav York Avas intended to meet a, necessity, and it was construid to be commensurate Avith that necessity. The Alabama, statute» Avas intended to meet a necessity, and it Avas in effect construed in the last cast»1 cited to» be commensurate Avith that necessity. In New York the necessity covered all dioses in action, and in violence to the language of the body of the enactment it Avas held to' give a, remedy to subject all dioses in action. In Alabama the necessity Avas only as to those dioses in action Avhich Avere concealed or unknoAvn; the terms of the enactment do not embrace any others: every consideration pertinent to the interpretation and construction of the statute ‘drives unerringly and inevitably to the conclusion that it does not and never did authorize anything Avhatever but bills of discovery and proceedings under hills of discovery to subject, the property discovered; and Allen’s case, supra, is to all intents and purposes a decision to that effect. So much for the insistence that the construction placed by the courts of that State on the New York statute should he adopted by our courts with reference to our statute.
*545But it is further insisted that the New York construction has been applied by this,.court to this statute. Tavo cases, are mainly relied! on ini this, connection. They are Brown v. Bates 10 Ala. 432, and Martin v. Carter, 90 Ala. 96. Brown v. Bates was decided before the change was made in the statute by the codifiers, but that change is not of importance to that case. That bill was strictly one within the, provisions of the statute as, we have canstrued it, and purely for the discovery of concealed property and its subjection Avhen discovered to the satisfaction, of the complainants’ judgment. It was, filed against the judgment debtor and against nobody else. It alleged among other things that defendant had choses in action and other property AAdiich were so secreted and concealed that process of law could not reach them. It did not aver, but to, the contrary showed ignorance in respect of, the names of third persons, having property of or owing money to the defendant, and sought to discover these persons. It was held to be well filed1, and its averments to, be sufficient under the act of 1844. It was simply an impossibility for the court in that case to have construed the statute to authorize any other bill in equity to subject choses in action than a bill to discover Choses in action and to, subject the choses discovered in the proceedings to, the judgment. And we by no means understand that any effort Avas made in that direction. Had it been made in the opinion, it Avould-have been the ■mere saying of Judge Collibb, not the adjudication of the court and of no efficacy for any purpose. That nothing of the sort Avas intended is shown by the ruling of the same judges at toe succeeding term of toe court that no bill in equity Avould lie to reach choses in action leviable by garnishment at law. — Allen’s case, supra.
In Martin v. Carter, 90 Ala. 96, Judge Clopton said: “Under the statute [the reference being to the statute we b ave been considering, then constituting section 3540 of the Code of 1886], a bill may be filed to subject property Avhich cannot be sold under execution, or reached by legal process, or for discovery in aid of the execution at law.” He cites no authority for this broad proposition except Brown v. Bates, which, as we have *546seen, does n.ot so decide. The hill sought to subject to the claim of the complainant the interest of Martin, one of the respondents, in two notes executed by Wells & Moore to Martin and six other persons jointly, and to foreclose a. mortgage, given by the makers of the notes to the payees, to secure the payment thereof. While assuming that the bill is filed under the statute, the decision is rested on the grounds that the interest of Martin in the mortgaged property could not be levied on, and that- his interest in the notes, could not be reached and subjected by process- of garnishment, because that would be a splitting up of the cause of action against the makers of the notes. Now this was a correct decision, and the only proper grounds to put it upon wholly- apart from the statute. As held and illustrated in many of the cases which we have collated, this case presented a state of facts upon which on all the. authorities relief in equity could be liad without reference to the acti of 1844. It was simply a case of a right given at law which because of a legal impediment could not be effectuated by legal process. As we have seen, long before the act of 1844, a. statute of this State gave to a judgment creditor the riglit to subject the dioses in action of the debtor to- the satisfaction of the judgment. There was- before that time also a statute authorizing attachments to be levied upon dioses in action of the defendant in attachment by process of garnishment. Both these statutes have been of force* ever since their enactment in 1818. But for the legal impediment referred to, the: interest of Martin in the notes given to him and others by Wells & Moore was leviable by process of garnishment at law. The interest belonged to a class of property against which the judgment creditor" was given a right to proceed by legal process. But in this particular instance lie could not so proceed because the makers of the notes could not be forced at law to pay one of the joint payees leaving themselves subject to other suits by the other payees, and the judgment creditor of one of the payees, having no claim against the others, could not coerce the payment of the full amount of the notes; Here there was a, right given at law, a legal impediment to1 its enforcement at *547law, and! an appeal to chancery to- effectuate the right because though given by the law', the law courts could not effectuate it. And chancery jurisdiction is always properly invoked in such cases on the principle elaborated by Chancellor Sanford and other courts and judges from whom we have quoted in, the course of this' opinion, and thus tersely stated by Lord Lindley : “Courts of equity [before the statute] gave relief where a legal right' existed, and there were legal difficulties Avhich prevented the enforcement of that right at law.”— Holmes v. Millage, 10 Ruling Cases, 608. So that all that Avas said by Judge Clopton in Martin v. Carter as to the statute was but, the merest dicta, outside of the case, and unsound as dicta; and the decision Avas properly rested on considerations Aldrich gave the bill equity and authorized the relief pray eld Avithout any reference to the statute. What Judge Glopton thus mistakenly andl unnecessarily said is of no more importance or effect as a construction of the statute than had it been said in a casual conversation:.
The case of Nix v. Winter, 35 Ala. 309, is also cited in support of the application for rehearing. Nothing was involved or decided or even said in, that case bearing upon the construction of the statute in the respect under consideration,. Brown v. Bates is there cited to the point that it, was not indispensable for' a, bill under the statute to aver that the execution' Avas- issued to, the county of the debtor’s res-idlence and returned “milla bona ” and from- this it may be inferred that the court assumed that that bill Avas filed under the statute. If so, the assumption Avas entirely gratuitous and erroneous. The bill was filed td subject an equitable interest in Hand and thus invoked the exercise of jurisdiction which courts of chancery have independent of statute, the Avell established dloctrine being that equity power may be appealed to to subject the debtor’s equitable interest in property “which could have been reached at la.AV, if he had had the legal interest in, it instead of an equitable interest only.” — Holmes v. Millage, supra.
It is said that Chief Justice-Bricicell, in Ex parte John Hardy, 68 Ala. 303, 323 et seq., expressed views at *548war with the conclusion we reach as to the original jurisdiction of equity and the construction of the statute of 1844. But the opinion of Judge Brickell in that case was the dissenting, not the ruling opinion, andl it was, therefore, impotent to put a construction on the statute or to settle what the law was before its enactment. What he did say was merely argumentative and incidental in support of his position in the case, and would have been dActa even had his been the governing opinion. Among other things, however, ha did say: “'Thej whole scope of the statute, as is evident from its most casual reading, is to authorize creditors, who have exhausted remedies at law, to resort to a court of equity for the discovery of property subject- to the payment of their debts; and when discovered, its subjection for that purpose by the decree and process of the court. * * * When the principle is established that every species of property, legal or equitable, tangible or intangible, in which a debtor has a beneficial right or interest, not exempt by law, is bound for, and may be reached and applied to the satisfaction of his debts, if legal remedies fail, as they are indisputably shown to have failed, when there is a judgment at law, followed by a fruitless return of the process for its execution, the power of a court of equity must be perfectly adequate to carry the principle into effect, unless with humiliation we confess, that there are legal and equitable wrongs for which there is no.remedy.” After setting this down as the predicate for what was to' follow, what he further said! at war with our conclusion, was equally at war and inconsistent with the impositions, thus- made the baséis of his argument. In the ruling opinion in Ex parte Hardy, which was delivered by Judge Somerville, no views in opposition to our position are expressed, but on the contrary in a general way wei are supported.
We have examined every other Alabama case, it is believed, at all bearing upon either of the questions we have been discussing, and every case in which Brown v. Bates is cited; and we find in none of them anything to stand in the way of either of the conclusions we have reached; namely, -first, that in the absence of statutes *549the chancery court has no jurisdiction to reach and subject dioses in action of a judgment debtor to the satisfaction of the judgment; second, that the statute of 1844 confers that jurisdiction only in respect of concealed dioses in action to he exercised only by bill of discovery and proceedings thereunder; and, third,, that a judgment creditor having under the garnishment statute the legal right to ievy upon choses. in action of his debtor, may come into equity to effectuate that legal right when because of some impediment it cannot be enforced by garnishment.
This bill is obviously mot finder the statute as we construe the statute and as the statute plainly reads. There is no impediment to the enforcement of the complainants’ judgment, by garnishment at Ijaw, and the case it presents is not otherwise cognizable' in equity apart from statutes.
The importance of this case in principle, and, to the parties in amounts involved, and the ability, learning and industry displayed by- counsel upon either hand in its presentation go somewhat in. justification of the length of this opinion.
Let the application for rehearing be overruled.